TRANSGENDER INMATES' RIGHT TO GENDER CONFIRMATION SURGERY
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TRANSGENDER INMATES’ RIGHT TO GENDER
CONFIRMATION SURGERY
Marissa Luchs*
The Eighth Amendment prohibits cruel and unusual punishment. It
ensures that the state’s power to punish is exercised within the bounds of
evolving standards of human decency. At the time of its enactment in 1791,
the Eighth Amendment merely protected against torture and other physically
barbarous treatments. However, as society’s standards of decency changed,
so too did the scope of the Eighth Amendment. Today, among other
protections, the Eighth Amendment mandates that prisons provide inmates
with adequate conditions of confinement. This includes an obligation on the
part of the prison to provide adequate medical care. But a great deal of
controversy exists as to what exactly adequate medical care requires. In the
context of transgender inmates, circuit courts are split over the necessity of
providing gender confirmation surgery. While some courts believe that
blanket bans on such surgery are constitutional, others prescribe a case-by-
case analysis to determine the constitutionality of a prison’s denial of gender
confirmation surgery. This Note explores the divergence between these two
approaches and argues that a case-by-case approach better comports with
both the historical confines of the Constitution and contemporary societal
values.
INTRODUCTION................................................................................ 2810
I. THE FRAMEWORK FOR UNDERSTANDING TRANSGENDER INMATES’
EIGHTH AMENDMENT CLAIMS ............................................. 2814
A. The Eighth Amendment ................................................... 2814
B. Inadequate Medical Care Claims ................................... 2816
C. Medical Needs Unique to Transgender Inmates ............ 2818
1. Gender Dysphoria .................................................... 2819
2. Gender Confirmation Surgery .................................. 2820
* J.D. Candidate, 2022, Fordham University School of Law; B.A., 2019, Vanderbilt
University. I would like to express my deepest gratitude to Professor Joseph Landau and the
editors and staff of the Fordham Law Review for their invaluable guidance and tireless
commitment. I would also like to thank my family and friends for their constant love,
encouragement, and support.
28092810 FORDHAM LAW REVIEW [Vol. 89
II. THE DISPUTE OVER GENDER CONFIRMATION SURGERY BEGINS IN
THE FIRST CIRCUIT ............................................................... 2821
A. Kosilek v. Spencer .......................................................... 2821
B. The Significance of Kosilek ............................................ 2824
III. THE FIFTH AND NINTH CIRCUITS WEIGH IN AND SPLIT ........... 2824
A. The Fifth Circuit: Gibson .............................................. 2825
1. The Objective Prong ................................................ 2825
2. The Subjective Prong ............................................... 2826
3. Evolving Standards of Decency ............................... 2827
B. The Ninth Circuit: Edmo ............................................... 2827
1. The Objective Prong ................................................ 2829
2. The Subjective Prong ............................................... 2829
3. Evolving Standards of Decency ............................... 2830
4. Rejection of Gibson ................................................. 2830
IV. CONFORMING TO THE NINTH CIRCUIT’S APPROACH ............... 2831
A. Courts Should Employ a Case-by-Case Analysis ........... 2832
1. Eighth Amendment Jurisprudence Rejects Blanket
Bans ......................................................................... 2832
2. Blanket Bans on GCS Are Inconsistent with Evolving
Standards of Decency .............................................. 2832
3. The Holding in Gibson Is Fatally Flawed ................ 2835
4. Consensus Among the Medical Community That GCS
Can Be Necessary ................................................... 2836
B. Tools to Conduct a Case-by-Case Analysis .................... 2837
CONCLUSION ................................................................................... 2839
INTRODUCTION
Transgender individuals1
are incarcerated at a significantly higher rate
than their cisgender2 counterparts.3 Due to disproportionately high rates of
poverty among transgender communities and discriminatory profiling, one in
six transgender individuals will be incarcerated during their lifetime.4 Once
imprisoned, transgender individuals are among the most vulnerable inmates
in the prison population.5 These inmates are subjected to unprecedented rates
1. Transgender individuals are those whose gender identity is different from their “sex
assigned at birth.” Transgender Identity Terms and Labels, PLANNED PARENTHOOD,
https://www.plannedparenthood.org/learn/gender-identity/transgender/transgender-identity-
terms-and-labels [https://perma.cc/7V6C-AGWL] (last visited Apr. 14, 2021).
2. Cisgender individuals identify with the “sex they were assigned at birth.” Id.
3. See Tara Dunnavant, Note, Bye-Bye Binary: Transgender Prisoners and the
Regulation of Gender in the Law, 9 FED. CTS. L. REV., no. 1, 2016, at 15, 19.
4. Id.
5. See Richard Edney, To Keep Me Safe from Harm?: Transgender Prisoners and the
Experience of Imprisonment, 9 DEAKIN L. REV. 327, 328 (2004).2021] THE RIGHT TO GENDER CONFIRMATION SURGERY 2811
of abuse and harassment, not only from other inmates but also from the prison
authorities themselves.6
The challenges faced by transgender inmates are visible in many different
forms. For one, many transgender inmates are subjected to “humiliation and
degradation” from prison staff and other prisoners.7 Transgender inmates are
considered “the lowest rung on the totem pole” and, as a result, endure verbal
and physical abuse.8
Further, transgender prisoners often fall victim to sexual abuse.9
Approximately 40 percent of transgender inmates report being sexually
assaulted while imprisoned.10 This rate of abuse is ten times greater than that
of the general prison population.11 This partly results from prison policies
that place inmates in facilities in accordance with their genitalia and birth-
assigned sex rather than by their gender identities.12
To compound the problem, transgender inmates often cannot seek
protection. Prison officials generally “turn a blind eye” to these abuses and
sometimes even encourage them.13 In fact, transgender inmates are five
times more likely than cisgender inmates to be sexually abused by prison
staff.14 If prison authorities seek to rectify this mistreatment at all, they often
place the transgender inmate in solitary confinement.15 This can cause
serious psychological harm and trauma equivalent to that of torture.16
6. See NAT’L CTR. FOR TRANSGENDER EQUAL., LGBTQ PEOPLE BEHIND BARS: A GUIDE
TO UNDERSTANDING THE ISSUES FACING TRANSGENDER PRISONERS AND THEIR LEGAL RIGHTS,
6 (2018), https://transequality.org/sites/default/files/docs/resources/TransgenderPeople
BehindBars.pdf [https://perma.cc/G9BD-HJVG].
7. Id.
8. Tammi S. Etheridge, Safety v. Surgery: Sex Reassignment Surgery and the Housing
of Transgender Inmates, 15 GEO. J. GENDER & L. 585, 601 (2014) (quoting SYLVIA RIVERA L.
PROJECT, “IT’S WAR IN HERE”: A REPORT ON THE TREATMENT OF TRANSGENDER AND INTERSEX
PEOPLE IN NEW YORK STATE MEN’S PRISONS 26 (2007), https://srlp.org/files/warinhere.pdf
[https://perma.cc/VY2E-Q6WB])).
9. See Dunnavant, supra note 3, at 19.
10. NAT’L CTR. FOR TRANSGENDER EQUAL., supra note 6, at 6.
11. Id.
12. Dunnavant, supra note 3, at 19.
13. See Darren Rosenblum, Trapped in Sing Sing: Transgendered Prisoners Caught in
the Gender Binarism, 6 MICH. J. GENDER & L. 499, 525 (2000).
14. SANDY E. JAMES ET AL., NAT’L CTR. FOR TRANSGENDER EQUAL., THE REPORT OF THE
2015 U.S. TRANSGENDER SURVEY 192 (2017), https://transequality.org/sites/default
/files/docs/usts/USTS-Full-Report-Dec17.pdf [https://perma.cc/F689-SFCB].
15. NAT’L CTR. FOR TRANSGENDER EQUAL., supra note 6, at 6.
16. Id.2812 FORDHAM LAW REVIEW [Vol. 89
Additionally, transgender inmates, specifically those with gender
dysphoria,17 face serious barriers to receiving adequate medical care.18
These inmates often seek hormone therapy, counseling, gender confirmation
surgery (GCS), and other transition-related accommodations to alleviate their
dysphoria.19 However, prison officials commonly block access to such
treatment through restrictive policies such as “freeze-frames” and blanket
bans.20
In an effort to combat these oppressive policies, gender dysphoric inmates
have sought recourse under the Eighth Amendment.21 The Eighth
Amendment prohibits cruel and unusual punishment.22 The U.S. Supreme
Court has held that the Eighth Amendment requires prisons to provide
inmates with conditions of confinement that comport with evolving standards
of decency.23
In litigation, gender dysphoric inmates have asserted that a prison’s failure
to provide transition-related medical care violates the Eighth Amendment.24
While courts generally have acknowledged some duty on the part of prisons
to provide transition-related care, the extent of such duty remains contested.25
Specifically, much debate surrounds prisons’ obligation to provide GCS.26
Without any guidance from the Supreme Court, circuit courts have been
left to determine the constitutionality of prisons’ denial of GCS.27 The circuit
courts first addressed this issue in Kosilek v. Spencer.28 Although the First
17. Gender dysphoria is a medical condition characterized by significant distress or
impairment resulting from an incongruence between one’s gender identity and sex assigned at
birth. See infra Part I.C.1. Some, but not all, transgender individuals suffer from gender
dysphoria. Jack Drescher, et al., Expert Q & A: Gender Dysphoria, AM. PSYCHIATRIC ASS’N,
https://www.psychiatry.org/patients-families/gender-dysphoria/expert-q-and-a
[https://perma.cc/XZ95-Z86B] (last visited Apr. 14, 2021). This Note focuses specifically on
the Eighth Amendment remedies available for gender dysphoric inmates.
18. See Samantha Braver, Note, Circuit Court Dysphoria: The Status of Gender
Confirmation Surgery Requests by Incarcerated Transgender Individuals, 120 COLUM. L.
REV. 2235, 2247 (2020) (stating that it is exceedingly difficult for transgender inmates,
particularly gender dysphoric inmates, to receive proper medical care).
19. See Yvette K. W. Bourcicot & Daniel Hirotsu Woofter, Prudent Policy:
Accommodating Prisoners with Gender Dysphoria, 12 STAN. J.C.R. & C.L. 283, 286, 304
(2016).
20. See Transgender Incarcerated People in Crisis, LAMBDA LEGAL,
https://www.lambdalegal.org/know-your-rights/article/trans-incarcerated-people
[https://perma.cc/3B2W-GPE9] (last visited Apr. 14, 2021). “Freeze-frame” policies “freeze
treatment options for incarcerated transgender individuals at the level of treatment they
received prior to their incarceration.” Braver, supra note 18, at 2247.
21. See, e.g., Mitchell v. Kallas, 895 F.3d 492 (7th Cir. 2018); Fields v. Smith, 653 F.3d
550 (7th Cir. 2011); De’Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003).
22. U.S. CONST. amend. VIII.
23. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
24. See infra Part I.C.
25. See Jordan Rogers, Note, Being Transgender Behind Bars in the Era of Chelsea
Manning: How Transgender Prisoners’ Rights Are Changing, 6 ALA. C.R. & C.L.L. REV.
189, 195 (2015).
26. See infra Part III.
27. See infra Parts II, III.
28. 774 F.3d 63 (1st Cir. 2014).2021] THE RIGHT TO GENDER CONFIRMATION SURGERY 2813
Circuit’s holding in Kosilek was clear—the prison’s denial of GCS did not
amount to cruel and unusual punishment—the implications are more
obscure.29 Both the Fifth and Ninth Circuits have relied on Kosilek in
deciding the constitutionality of a blanket ban on GCS; however, these
circuits are split on the issue.30 On the one hand, in Gibson v. Collier,31 the
Fifth Circuit held that a prison’s blanket ban on GCS is constitutional because
such surgery is never medically necessary.32 On the other hand, in Edmo v.
Corizon, Inc.,33 the Ninth Circuit found a similar blanket ban on GCS
unconstitutional on the basis that such treatment can be medically
necessary.34 Accordingly, Edmo urged courts to undertake a case-by-case
analysis to assess whether a prison’s denial of GCS constitutes cruel and
unusual punishment.35
This Note examines the aforementioned circuit split between the Fifth and
Ninth Circuits in the context of the Eighth Amendment’s requirement that
punishments comport with evolving standards of decency. In doing so, this
Note not only addresses the requirements for bringing an Eighth Amendment
inadequate medical care claim but also explores whether there is a place for
blanket bans within larger Eighth Amendment jurisprudence. Finally, this
Note discusses this circuit split within its larger societal framework in an
attempt to gauge contemporary standards of decency, considering both the
increased accessibility and acceptance of GCS, and the overarching national
movement to promote civil rights.
Part I of this Note provides the framework for understanding the Eighth
Amendment claims brought by transgender inmates. Specifically, Parts I.A
and I.B discusses the foundations of the Eighth Amendment, its connection
to the evolving standards of decency, and its application to inadequate
medical care claims. Part I.C then explores the conditions that prompt
transgender inmates to bring such claims. Part II discusses Kosilek, the first
case in which a circuit court addressed whether a transgender inmate has an
Eighth Amendment right to GCS and explains Kosilek’s importance in the
current circuit split. Next, Part III explores the split between the Fifth and
Ninth Circuits regarding the constitutionality of prisons’ denial of GCS.
Lastly, Part IV takes the position that a blanket ban is contrary to the evolving
standards of decency, incompatible with existing Eighth Amendment
jurisprudence, inconsistent with the consensus among the medical
community, and also a product of flawed case law. As a result, this part sides
with Edmo and urges courts to engage in a case-by-case analysis.
29. See infra Part II.B.
30. See infra Part III.
31. 920 F.3d 212 (5th Cir.).
32. Id. at 223, 228.
33. 935 F.3d 757 (9th Cir. 2019) (per curiam), reh’g denied, 949 F.3d 489 (9th Cir. 2020),
stay denied sub nom. Idaho Dep’t of Corr. v. Edmo, 140 S. Ct. 2800 (2020) (Kagan, J., in
chambers), and cert. denied, No. 19-1280, 2020 WL 6037411 (U.S. Oct. 13, 2020).
34. See id. at 796–97.
35. Id. at 796.2814 FORDHAM LAW REVIEW [Vol. 89
I. THE FRAMEWORK FOR UNDERSTANDING TRANSGENDER INMATES’
EIGHTH AMENDMENT CLAIMS
This part provides the foundation for understanding the Eighth
Amendment claims brought by transgender inmates. Part I.A introduces the
Eighth Amendment. Part I.A discusses the Eighth Amendment’s prohibition
on cruel and unusual punishment, explains how courts have used this
language to challenge both prisoners’ sentences and conditions of
confinement, and highlights the importance of adhering to evolving standards
of decency. Part I.B then explores a frequently challenged condition of
confinement—inadequate medical care—and lays out the two-prong test
plaintiffs must satisfy to successfully establish such claims. Part I.C then
focuses specifically on the context in which transgender inmates may bring
inadequate medical care claims. Namely, Part I.C.1 explains gender
dysphoria, a condition for which transgender inmates seek treatment from
prisons, and Part I.C.2 discusses GCS, the treatment typically sought.
A. The Eighth Amendment
The Eighth Amendment prohibits “cruel and unusual punishments.”36 It
ensures that the state’s power to punish convicted criminals is “exercised
within the limits of civilized standards.”37
While originally drafted to protect against “physically barbarous
treatment,” over time, courts have extended the Eighth Amendment’s
protections beyond mere physical torture.38 Today, a wide range of
government actions have been held to violate Eighth Amendment scrutiny.39
Firstly, prisoners have successfully relied on the Eighth Amendment to
challenge the constitutionality of their sentences.40 Sentences are deemed
“cruel and unusual” when they are “‘grossly disproportionate’ to the
36. U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”).
37. Trop v. Dulles, 356 U.S. 86, 100 (1958).
38. See Estelle v. Gamble, 429 U.S. 97, 102 (1976). The Eighth Amendment originally
addressed “torture, such as the rack, the thumbscrew, the iron boot, the stretching of limbs and
the like.” Ryan Dischinger, Note, Adequate Care for a Serious Medical Need: Kosilek v.
Spencer Begins the Path Toward Ensuring Inmates Receive Treatment for Gender Dysphoria,
22 TUL. J.L. & SEXUALITY 169, 171 (2013) (quoting O’Neil v. Vermont, 144 U.S. 323, 339
(1892) (Field, J., dissenting)).
39. See, e.g., Wilkins v. Gaddy, 559 U.S. 34, 38, 40 (2010) (holding that punching,
kicking, choking, and overall excessive physical force by a corrections officer against a
prisoner constitutes “cruel and unusual punishment”); Roper v. Simmons, 543 U.S. 551, 570-
71 (2005) (holding that the Eighth Amendment prohibits the death penalty for criminal
offenders under the age of eighteen); Walker v. Schult, 717 F.3d 119, 126–27 (2d Cir. 2013)
(holding that exposing prisoners to extreme temperatures, preventing prisoners from sleeping,
providing unsanitary conditions, and failing to provide toiletries and other hygienic materials
may all constitute “cruel and unusual punishments”).
40. See Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84
N.Y.U. L. REV. 881, 884 (2009) (stating that the Eighth Amendment limits the “criminal
sentences the state may impose”); see also Roper, 543 U.S. at 575; Atkins v. Virginia, 536
U.S. 304, 321 (2002) (determining that inflicting the death penalty on an intellectually
disabled person would be cruel and unusual punishment).2021] THE RIGHT TO GENDER CONFIRMATION SURGERY 2815 crime,”41 are “totally without penological justification,”42 or “involve the unnecessary and wanton infliction of pain.”43 Secondly, prisoners also invoke the Eighth Amendment to challenge their conditions of confinement.44 In Estelle v. Gamble,45 the Supreme Court established that certain deprivations suffered during imprisonment constitute “cruel and unusual punishments” when a prison acts with deliberate indifference toward an inmate’s serious need.46 Such deprivations include failure to provide adequate food, shelter, clothing, or medical care.47 What constitutes cruel and unusual punishment cannot be assessed in a vacuum. Courts must evaluate punishments in accordance with the Eighth Amendment’s “broad and idealistic concepts of dignity, civilized standards, humanity, and decency.”48 What may have been “cruel and unusual” at the time of the Eighth Amendment’s enactment in 1791 may be very different than what is cruel and unusual today.49 As such, courts look to the “evolving standards of decency that mark the progress of a maturing society” when determining the constitutionality of a punishment.50 A punishment is cruel and unusual if it is inconsistent with society’s current standard of decency.51 As societal notions of decency are constantly changing, so too are the actions deemed cruel and unusual.52 To navigate this complexity, courts generally look to objective indicia of society’s standards to determine the national consensus regarding a particular punishment.53 Such objective indicia include legislative enactments, state practices, and recent trends in the law indicating a change in direction.54 A national consensus denouncing a 41. Dolovich, supra note 40, at 883–84 (quoting Coker v. Georgia, 433 U.S. 584, 592 (1977)). 42. Id. at 884 (quoting Gregg v. Georgia, 428 U.S. 153, 183 (1976)). Retribution, deterrence, incapacitation, and rehabilitation are penological goals sufficient to justify a punishment under the Eighth Amendment. See Graham v. Florida, 560 U.S. 48, 71 (2010). 43. Dolovich, supra note 40, at 884 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). 44. See Wilson v. Seiter, 501 U.S. 294, 297 (1991) (stating that the Eighth Amendment could be applied beyond sentencing to deprivations suffered during imprisonment). 45. 429 U.S. 97 (1976). 46. See Wilson, 501 U.S. at 297. 47. See Dischinger, supra note 38, at 171 (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)); see also, e.g., Ball v. LeBlanc, 792 F.3d 584, 596 (5th Cir. 2015) (holding that housing vulnerable inmates in hot cells without access to “heat-relief measures” is unconstitutional); Reed v. McBride, 178 F.3d 849, 856 (7th Cir. 1999) (stating that knowingly depriving a prisoner of food for three to five days violates the Eighth Amendment). 48. See Estelle, 429 U.S. at 102 (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)). 49. See Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). 50. See Trop v. Dulles, 356 U.S. 86, 101 (1958). 51. See Estelle, 429 U.S. at 103. 52. See Weems v. United States, 217 U.S. 349, 378 (1910) (explaining that the Eighth Amendment “is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice”). 53. Rachael Rezabek, Note, (D)evolving Standards of Decency: The Unworkability of Current Eighth Amendment Jurisprudence as Illustrated by Kosilek v. Spencer, 87 S. CAL. L. REV. 389, 399 (2014). 54. Id.; see also infra Part IV.A.2 (identifying specific objective indicia relevant in assessing medical treatments).
2816 FORDHAM LAW REVIEW [Vol. 89
particular punishment supports a finding that such punishment is not in line
with civilized standards, decency, and humanity and thus, violates the Eighth
Amendment’s prohibition on cruel and unusual punishment.55
B. Inadequate Medical Care Claims
The adequacy of medical care is a condition of confinement that is
frequently challenged.56 Because inmates have no choice but to rely on the
prison to treat their medical needs, a prison’s failure to do so can cause
serious pain, suffering, physical torture, or even death.57 In Estelle, the Court
held that a prison inflicts cruel and unusual punishment when it acts with
deliberate indifference to a prisoner’s serious medical need.58 This requires
a two-prong showing.59
First, a prisoner must satisfy an objective prong that requires proof of a
“serious medical need.”60 A serious medical need is one “diagnosed by a
physician as mandating treatment, or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.”61 Once
a prisoner demonstrates a serious medical need, this prong also requires a
showing that the prison provided inadequate medical care.62 A prison facility
need not provide the most ideal treatment or even the one the prisoner prefers,
but the treatment provided must be “at a level reasonably commensurate with
modern medical science and of a quality acceptable within prudent
professional standards.”63
If the treatment provided was adequate, it does not matter that another
medical professional might have prescribed a different course of care.64 If a
treatment is deemed medically necessary, however, then no other care will
be deemed adequate.65 It follows that a prison cannot issue a blanket ban on
55. See Atkins v. Virginia, 536 U.S. 304, 316 (2002) (finding that a punishment was cruel
and unusual where there was a national consensus against it).
56. See Wilson v. Seiter, 501 U.S. 294, 311 n.1 (1991) (stating that courts have “routinely”
applied the Eighth Amendment to deprivations of medical care).
57. Estelle v. Gamble, 429 U.S. 97, 103 (1976).
58. Id. at 104.
59. Sarah Halbach, Comment, Framing a Narrative of Discrimination Under the Eighth
Amendment in the Context of Transgender Prisoner Health Care, 105 J. CRIM. L. &
CRIMINOLOGY 463, 475 (2015).
60. Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014). Besides gender dysphoria, other
examples of recognized “serious medical needs” include “swollen ankles, inability to sleep,
chills, tingling and numbness of hands, hyperventilation, severe back and leg pain, and double
vision.” Loadholt v. Moore, 844 F. Supp. 2d 1274, 1279 (S.D. Ga. 2012) (citing Ancata ex rel.
Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 702–03 (11th Cir. 1985)).
61. Guadreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990).
62. Kosilek, 774 F.3d at 85.
63. See United States v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987).
64. See Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019) (per curiam), reh’g
denied, 949 F.3d 489 (9th Cir. 2020), stay denied sub nom. Idaho Dep’t of Corr. v. Edmo, 140
S. Ct. 2800 (2020) (Kagan, J., in chambers), and cert. denied, No. 19-1280, 2020 WL 6037411
(U.S. Oct. 13, 2020).
65. Bethany L. Edmondson, Note, Trans-lating the Eighth Amendment Standard: The
First Circuit’s Denial of a Transgender Prisoner’s Constitutional Right to Medical Treatment,
51 GA. L. REV. 585, 592 (2017).2021] THE RIGHT TO GENDER CONFIRMATION SURGERY 2817
a medically necessary treatment where no other treatment will suffice.66
Therefore, determining the necessity of the treatment is critical in assessing
the validity of these claims. Standards of care and practice in the medical
community are extremely important in this analysis.67
Once prisoners fulfill this objective prong, they must then satisfy a
subjective prong.68 This requires proof that the prison was deliberately
indifferent to that need.69 This component is fulfilled if the prisoner can
prove that a prison official knew of and consciously disregarded a substantial
risk of serious harm to the inmate’s health or safety.70 Thus, mere negligence
or inadvertence alone is not enough to prove deliberate indifference.71 On
the other hand, actual malice by the prison is not required.72 The prisoner
need not prove that “a prison official acted or failed to act believing that harm
actually would befall an inmate; it is enough that the official acted or failed
to act despite his knowledge of a substantial risk of serious harm.”73
In considering this subjective prong, “security considerations inherent in
the functioning of a penological institution must be given significant
weight.”74 Thus, even denials of necessary medical care may not rise to the
level of deliberate indifference if the prison based its decision on a legitimate
concern for prisoner safety and security.75
Finally, like all Eighth Amendment claims, inadequate medical care claims
must be decided in the context of evolving standards of decency.76 However,
the deceny analysis is not confined to either of the two prongs.77 Instead,
66. See Fields v. Smith, 653 F.3d 550, 556, 559 (7th Cir. 2011) (rejecting a prison’s
blanket ban on hormone therapy after finding that there was no “adequate replacement” for
the treatment).
67. Edmo, 935 F.3d at 786.
68. Perry v. Roy, 782 F.3d 73, 78 (1st Cir. 2015).
69. Id.
70. Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Gomez v. Randle, 680 F.3d
859, 865–66 (7th Cir. 2012) (holding that failure to treat an inmate’s shotgun wound for four
days amounted to deliberate indifference where the prison was aware of the injury and the
delay in treatment caused “unnecessary pain as a result of a readily treatable condition”); Gill
v. Mooney, 824 F.2d 192, 195–96 (2d Cir. 1987) (finding guards’ conscious refusal to follow
a physician’s orders and provide an inmate access to the prison’s exercise facilities constituted
deliberate indifference to his neck and back pain); Nolet v. Armstrong, 197 F. Supp. 3d 298,
306 (D. Mass. 2016) (determining a prison nurse was deliberately indifferent to an inmate
when she failed to refer the inmate “for further or additional treatment for his wound, despite
observing Plaintiff’s wound for several months [and] seeing infection and [a lack of
healing]”).
71. Farmer, 511 U.S. at 835.
72. Carrie S. Frank, Note, Must Inmates Be Provided Free Organ Transplants?:
Revisiting the Deliberate Indifference Standard, 15 GEO. MASON U. C.R.L.J. 341, 352 (2005)
(noting that deliberate indifference requires “something more than negligence, but less than
malice”).
73. Farmer, 511 U.S. at 842.
74. Kosilek v. Spencer , 774 F.3d 63, 83 (1st Cir. 2014).
75. Id.
76. See Estelle v. Gamble, 429 U.S. 97, 103 (1976).
77. See, e.g., Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019) (per curiam), reh’g
denied, 949 F.3d 489 (9th Cir. 2020), stay denied sub nom. Idaho Dep’t of Corr. v. Edmo, 140
S. Ct. 2800 (2020) (Kagan, J., in chambers), and cert. denied, No. 19-1280, 2020 WL 60374112818 FORDHAM LAW REVIEW [Vol. 89
standards of decency are the benchmark against which each inquiry must be
made, a thread woven throughout the entire decision.78 Only by considering
evolving standards of decency can courts determine what a serious medical
need is, whether there was any deliberate indifference, and ultimately, what
constitutes cruel and unusual punishment.79 Despite the importance of
adhering to evolving standards of decency, curiously, courts often do not
explicitly examine objective indicia of society’s standards.80 Accordingly, it
is often hard to pinpoint both exactly where the evolving standards of
decency analysis comes into play within the two prongs and also what courts
are relying on in determining that a treatment does or does not meet this
standard. However, what is clear is that punishments that do not comport
with society’s standards of decency will be deemed cruel and unusual.81
C. Medical Needs Unique to Transgender Inmates
Transgender inmates with gender dysphoria, in particular, rely on the
Eighth Amendment when asserting their right to receive proper medical
evaluation and treatment.82 They argue that gender dysphoria is a serious
medical condition and that failure to provide transition-related
accommodations, such as clothes and grooming,83 hormone therapy,84 and
GCS, constitutes cruel and unusual punishment.85 Although courts initially
denied these claims, today, courts recognize some duty on the part of the
prisons to treat gender dysphoria.86
(U.S. Oct. 13, 2020) (discussing evolving standards of decency before beginning the two-
pronged analysis and then again in the conclusion); Kosilek, 774 F.3d at 96 (exploring
evolving standards of decency not in the context of the two prongs but in the conclusion of
the opinion).
78. See Estelle, 429 U.S. at 106 (stating that evolving standards of decency are the
backdrop against which Eighth Amendment claims must be considered).
79. See Colwell v. Bannister, 763 F.3d 1060, 1066–67 (9th Cir. 2014) (considering
evolving standards of decency in determining what constitutes a serious medical need);
McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir. 1999) (reasoning that sufficiently harmful
acts or omissions constitute deliberate indifference only when they offend evolving standards
of decency).
80. Rezabek, supra note 53, at 412.
81. See Estelle, 429 U.S. at 103.
82. See Halbach, supra note 59, at 474 (“[T]ransgender prisoners have turned to the
Eighth Amendment to argue that a deprivation of hormone therapy and [GCS] constitutes
cruel and unusual punishment.”).
83. See, e.g., Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1263 (11th Cir. 2020).
84. See, e.g., Fields v. Smith, 653 F.3d 550, 555 (7th Cir. 2011) (discussing plaintiffs’
allegation that the prison’s blanket ban on hormone treatment violated the Eighth
Amendment); De’Lonta v. Angelone, 330 F.3d 630, 632 (4th Cir. 2003) (restating defendant’s
allegation that the prison’s failure to provide her with hormone therapy treatment constituted
cruel and unusual punishment).
85. See, e.g., Edmo v. Corizon, Inc., 935 F.3d 757, 767 (9th Cir. 2019) (per curiam), reh’g
denied, 949 F.3d 489 (9th Cir. 2020), stay denied sub nom. Idaho Dep’t of Corr. v. Edmo, 140
S. Ct. 2800 (2020) (Kagan, J., in chambers), and cert. denied, No. 19-1280, 2020 WL 6037411
(U.S. Oct. 13, 2020); Gibson v. Collier, 920 F.3d 212, 218 (5th Cir. 2019); Kosilek v. Spencer,
774 F.3d 63, 69 (1st Cir. 2014).
86. See Rogers, supra note 25, at 195 (stating that courts have recognized that in at least
some circumstances, prisoners have a right to transition-related medical care).2021] THE RIGHT TO GENDER CONFIRMATION SURGERY 2819
1. Gender Dysphoria
According to the American Psychiatric Association (APA), gender
dysphoria is a condition that involves an “incongruence between one’s
experienced/expressed gender and their assigned gender.”87 It is informally
described as the feeling of being “trapped in the wrong body.”88 Gender
dysphoria typically results in significant distress or impaired functioning.89
Patients experiencing gender dysphoria often exhibit “depression, anxiety,
compulsivity, behavior disorders, personality disorders, and tendencies
toward self-harm and suicide.”90 The Diagnostic and Statistical Manual of
Mental Disorders provides criteria for diagnosing gender dysphoria.91 It
suggests that patients must exhibit at least two of the following characteristics
for at least six months to be diagnosed with gender dysphoria:
1. A marked incongruence between one’s experienced/expressed gender
and primary and/or secondary sex characteristics (or in young
adolescents, the anticipated secondary sex characteristics).
2. A strong desire to be rid of one’s primary and/or secondary sex
characteristics because of a marked incongruence with one’s
experienced/expressed gender (or in young adolescents, a desire to
prevent the development of the anticipated secondary sex
characteristics).
3. A strong desire for the primary and/or secondary sex characteristics of
the other gender.
4. A strong desire to be of the other gender (or some alternative gender
different from one’s assigned gender).
5. A strong desire to be treated as the other gender (or some alternative
gender different from one’s assigned gender).
6. A strong conviction that one has the typical feelings and reactions of
the other gender (or some alternative gender different from one’s
assigned gender).92
A wide range of treatments have been prescribed for gender dysphoria.93
These include counseling, hormone therapy, puberty suppression, and
GCS.94
87. Jack Turban, What Is Gender Dysphoria?, AM. PSYCHIATRIC ASS’N (Nov. 2020),
https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria
[https://perma.cc/QU58-4GM6].
88. See Susan S. Bendlin, Gender Dysphoria in the Jailhouse: A Constitutional Right to
Hormone Therapy, 61 CLEV. ST. L. REV. 957, 960 (2013).
89. Turban, supra note 87.
90. Bourcicot & Woofter, supra note 19, at 286.
91. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 452 (5th ed. 2013) [hereinafter DSM-5].
92. Id.
93. Turban, supra note 87.
94. Id.2820 FORDHAM LAW REVIEW [Vol. 89
2. Gender Confirmation Surgery
GCS is a procedure that typically consists of breast/chest surgery, genital
surgery, and nongenital, nonbreast surgical interventions.95 Some gender
dysphoric inmates believe that GCS is the only adequate way to treat their
condition.96
The World Professional Association for Transgender Health (WPATH),
an international organization dedicated to advancing transgender health care,
agrees that for some patients with gender dysphoria, GCS is a medical
necessity.97 To “provide clinical guidance for health professionals to assist
transsexual, transgender, and gender nonconforming people,” the WPATH
created the Standards of Care for the Health of Transsexual, Transgender,
and Gender Nonconforming People (SOC).98 The SOC lays out the
following criteria for determining whether GCS is necessary:
1. Persistent, well documented gender dysphoria;
2. Capacity to make a fully informed decision and to consent for
treatment;
3. Age of majority in a given country;
4. If significant medical or mental health concerns are present, they must
be well controlled;
5. 12 continuous months of hormone therapy as appropriate to the
patient’s gender goals (unless the patient has a medical
contraindication or is otherwise unable or unwilling to take hormones).
6. 12 continuous months of living in a gender role that is congruent with
their gender identity.99
Although endorsed by WPATH, the necessity of GCS is not accepted by
everyone in the medical community.100 A “minority of the medical
community” refuses to accept that GCS is anything more than “cosmetic”
95. WORLD PRO. ASS’N FOR TRANSGENDER HEALTH, STANDARDS OF CARE FOR THE
HEALTH OF TRANSSEXUAL, TRANSGENDER, AND GENDER NONCONFORMING PEOPLE 57 (7th ed.
2011) [hereinafter WPATH SOC], https://www.wpath.org/media/cms/Documents/SOC
%20v7/Standards%20of%20Care%20V7%20-%202011%20WPATH.pdf?_t=1605186324
[https://perma.cc/N3QQ-CRJR].
96. See Rena Lindevaldsen, A State’s Obligation to Fund Hormonal Therapy and Sex-
Reassignment Surgery for Prisoners Diagnosed with Gender Identity Disorder, 7 LIBERTY U.
L. REV. 15, 15 (2012) (stating that some patients with gender dysphoria believe their condition
will only be alleviated through surgery).
97. WPATH SOC, supra note 95, at 1, 54.
98. Id. at 1.
99. Id. at 60.
100. See Brooke Acevedo, Note, The Constitutionality and Future of Sex Reassignment
Surgery in United States Prisons, 28 HASTINGS WOMEN’S L.J. 81, 88 (2017).2021] THE RIGHT TO GENDER CONFIRMATION SURGERY 2821
surgery.101 These individuals reject the conclusions and authority of
WPATH and believe that the SOC are merely “guidelines.”102
II. THE DISPUTE OVER GENDER CONFIRMATION SURGERY BEGINS IN THE
FIRST CIRCUIT
In Kosilek, a circuit court addressed for the first time whether, under the
Eighth Amendment, a prison’s failure to provide GCS to a transgender
inmate amounted to cruel and unusual punishment.103 Part II.A explores the
merits of Kosilek’s Eighth Amendment claim. Specifically, this section
discusses the court’s holding that the prison was not deliberately indifferent
to Kosilek’s serious medical need and provided her with adequate health
care. Part II.B highlights Kosilek’s influence in the split between the Fifth
and Ninth Circuits regarding the constitutionality of a blanket ban on GCS.
A. Kosilek v. Spencer
Michelle Kosilek, a prisoner assigned male at birth, had experienced
gender dysphoria since the age of three.104 As a result of her gender identity,
she endured tremendous mental and physical abuse throughout her life.105 In
1992, Kosilek was sentenced to life without parole for first-degree murder of
her then wife.106 While in prison, Kosilek attempted suicide twice.107 She
also tied a string around her testicles to castrate herself.108
Kosilek filed multiple lawsuits against the Massachusetts Department of
Correction (MDOC).109 In her first suit, she alleged that the prison’s failure
to evaluate her for gender dysphoria and provide the requisite treatment
amounted to cruel and unusual punishment under the Eighth Amendment.110
The district court held that the health care provided was inadequate but that
the prison was not deliberately indifferent.111 To rectify this inadequacy, the
prison provided Kosilek with hormones, electrolysis, feminine clothes,
accessories, and therapy to alleviate her dysphoria.112 Kosilek still sought
101. See id. (first citing Melissa Pandika, A Case Against Sex Change Surgeries, OZY (Nov.
10, 2015), https://www.ozy.com/the-new-and-the-next/a-case-against-sex-change-
surgeries/39103 [https://perma.cc/9N9W-75NN]; and then citing Julie Bindel, The Operation
That Can Ruin Your Life, STANDPOINT (Oct. 19, 2009), https://standpointmag.co.uk/the-
operation-that-can-ruin-your-life-features-november-09-julie-bindel-transsexuals/
[https://perma.cc/T3FU-YCNU]).
102. See, e.g., Kosilek v. Spencer, 774 F.3d 63, 76 (1st Cir. 2014) (discussing the testimony
of a licensed psychiatrist and an associate director of the John Hopkins School of Medicine
who stated that WPATH’s SOC are just guidelines rejected by many people involved in the
gender dysphoria field).
103. Id. at 68.
104. Kosilek v. Maloney, 221 F. Supp. 2d 156, 158 (D. Mass. 2002).
105. Id.
106. Kosilek, 774 F.3d at 68–69.
107. Id. at 69.
108. Id.
109. Id. at 68.
110. See Kosilek, 221 F. Supp. 2d at 159.
111. Id. at 195.
112. See Kosilek, 774 F.3d at 89.2822 FORDHAM LAW REVIEW [Vol. 89 GCS, but the prison denied her request.113 She filed a second suit alleging that failure to provide GCS specifically amounted to inadequate medical care for her gender dysphoria under the Eighth Amendment.114 After over twenty years of litigation, in 2012, the district court issued an injunction ordering MDOC to provide Kosilek with GCS.115 In 2014, the issue reached the First Circuit.116 The First Circuit reversed the district court’s grant of injunctive relief and held that MDOC’s failure to provide Kosilek with GCS was constitutional.117 First, according to the court, Kosilek failed to satisfy the objective prong of her inadequate medical care claim.118 The court accepted that Kosilek’s gender dysphoria constituted a serious medical need.119 This was undisputed by the state.120 However, the court held that the prison’s treatment was adequate.121 In particular, the court found that GCS was not medically necessary to treat Kosilek’s dysphoria.122 The court noted that the prison’s treatment led to a “real and marked improvement in Kosilek’s mental state.”123 Kosilek’s doctors testified that since receiving such treatment, she was joyful and more stable.124 Kosilek even admitted that MDOC’s treatment “led to a significant stabilization in her mental state.”125 Importantly, the court also acknowledged that a long period of time had passed since she had had suicidal ideation or attempted to castrate herself.126 The court determined that this treatment resulted in “significant” physical changes and an “increasingly feminine appearance.”127 Additionally, the court noted that MDOC even had a plan in place to minimize the risk of future harm to Kosilek.128 Moreover, the court found that the district court erroneously discredited a doctor’s testimony that GCS was not medically necessary for Kosilek.129 Although the doctor did not rely on WPATH’s SOC in determining that GCS was not necessary, the court nevertheless found the doctor’s testimony to be 113. See Kosilek v. Spencer, 889 F. Supp. 2d 190, 197 (D. Mass. 2012), rev’d, 774 F.3d 63. 114. Id. 115. Id. 116. See Kosilek, 774 F.3d at 68. 117. See id. at 96. 118. See id. at 90. 119. Id. at 86. 120. See id. 121. Id. at 86 (stating that the prison’s treatment “far exceeds a level of care that is ‘so inadequate as to shock the conscience’” (quoting Torraco v. Maloney, 923 F.2d 231, 235 (1st Cir. 1991))). 122. See id. at 90 (stating that the prison chose one of two acceptable alternative treatments). 123. Id. at 89. 124. Id. at 90. 125. Id. 126. Id. 127. Id. 128. Id. 129. Id. at 86–87. According to the First Circuit, the district court ignored “critical nuance” in the doctor’s testimony and relied on a “severely strained reading.” Id. at 87.
2021] THE RIGHT TO GENDER CONFIRMATION SURGERY 2823 credible.130 The court highlighted the testimony that indicated that the SOC were flexible and a product of the “lack of rigorous research in the field.”131 The majority specifically noted that, at the time, the SOC included language that said, “all readers should be aware of the limitations of knowledge in this area.”132 The court also determined that the subjective prong was not fulfilled.133 The court reasoned that MDOC neither knew nor should have known that GCS was the only adequate treatment.134 The court noted that MDOC received the opinions of multiple medical professionals and was ultimately presented with two seemingly alternative treatment plans, one that included GCS and one that did not.135 Further, the court found that MDOC was not deliberately indifferent given the safety concerns present in this case.136 Specifically, the court noted the threat to safety that arises when housing a transgender female inmate “with a criminal history of extreme violence against a female domestic partner— within a female prison population containing high numbers of domestic violence survivors.”137 The court also cited the testimony of multiple prison officials who acknowledged the risk, on the other hand, of housing a transgender female prisoner in a facility for male prisoners.138 Lastly, although Kosilek’s suicidal ideation was “very real,” the court found credible MDOC’s concern that providing Kosilek with GCS could incentivize other inmates to threaten suicide to receive a desired treatment.139 In reaching its holding, the court recognized that the Eighth Amendment prohibits punishments that violate society’s standards of decency.140 However, the court did not look to any objective indicia of a national 130. Id. 131. See id. at 78, 87. 132. Id. at 87. However, such language has since been removed from WPATH’s SOC. See WPATH SOC, supra note 95. 133. Kosilek, 774 F.3d at 91 (explaining that even if GCS was necessary, “it is not the district court’s own belief about medical necessity that controls, but what was known and understood by prison officials in crafting their policy” (citing Wilson v. Seiter, 501 U.S. 294, 300 (1991))). 134. Id. at 91–92. 135. Id. 136. Id. at 92 (stating that, with issues of security, the policy decisions of prison officials “should be accorded wide-ranging deference” (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979))). 137. Id. at 93. 138. See id. 139. Id. at 94. 140. Id. at 96 (“The Eighth Amendment, after all, proscribes only medical care so unconscionable as to fall below society’s minimum standards of decency.” (citing Estelle v. Gamble, 429 U.S. 97, 102–05 (1976))).
2824 FORDHAM LAW REVIEW [Vol. 89
consensus, as is typically done in other Eighth Amendment cases.141 Instead,
Kosilek relied solely on the expert testimony presented in the case.142
B. The Significance of Kosilek
The holding of Kosilek was clear: Kosilek failed to satisfy both the
objective and subjective prong of her Eighth Amendment inadequate health
care claim.143 Thus, denying GCS was not cruel and unusual punishment.144
However, the implications of this holding are ambiguous. Some courts have
understood Kosilek to stand for the proposition that a blanket ban on GCS is
constitutional, as GCS is never medically necessary.145 Others have
interpreted Kosilek as merely conducting a fact-specific analysis and
determining that GCS was not medically necessary in that particular case.146
Given this disagreement, as a circuit split developed among the Ninth and
Fifth Circuits regarding the constitutionality of a blanket ban on GCS, courts
on both sides of the debate have relied on Kosilek to support their holdings.147
III. THE FIFTH AND NINTH CIRCUITS WEIGH IN AND SPLIT
After Kosilek, a split emerged among the circuit courts as to the
constitutionality of a blanket ban on GCS.148 While courts have uniformly
accepted that gender dysphoria constitutes a serious medical need,149 a
141. See Rezabek, supra note 53, at 403–05 (discussing Kosilek and stating that “although
courts purport to analyze punishment, medical care, and prison condition cases according to
‘evolving standards of decency,’ which requires an examination of ‘objective indicia of a
society’s standards,’ courts seem to largely ignore objective considerations in medical care
cases”).
142. See Kosilek, 774 F.3d at 86–90 (reviewing the expert testimony before determining
that “DOC [had] chosen one of two alternatives—both of which [were] reasonably
commensurate with the medical standards of prudent professionals”).
143. See supra Part II.A.
144. See Kosilek, 774 F.3d at 96.
145. See Gibson v. Collier, 920 F.3d 212, 224–25 (5th Cir. 2019); Armstrong v. Mid-Level
Prac. John B. Connally Unit, No. SA-18-CV-00677, 2020 WL 230887, at *5 (W.D. Tex. Jan.
15, 2020).
146. See Edmo v. Corizon, Inc., 935 F.3d 757, 794 (9th Cir. 2019) (per curiam), reh’g
denied, 949 F.3d 489 (9th Cir. 2020), stay denied sub nom. Idaho Dep’t of Corr. v. Edmo, 140
S. Ct. 2800 (2020) (Kagan, J., in chambers), and cert. denied, No. 19-1280, 2020 WL 6037411
(U.S. Oct. 13, 2020); Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1191 (N.D Cal. 2015).
147. See, e.g., Edmo, 935 F.3d at 794 (citing Kosilek in support of its fact-specific analysis
and rejection of a blanket ban on GCS); Gibson, 920 F.3d at 224–25 (relying on Kosilek to
hold that a blanket ban on GCS is constitutional).
148. Compare Edmo, 935 F.3d at 796–97 (finding a blanket ban to be unconstitutional),
with Gibson, 920 F.3d at 216 (accepting a blanket ban as within the bounds of the Eighth
Amendment).
149. See Alvin Lee, Note, Trans Models in Prison: The Medicalization of Gender Identity
and the Eighth Amendment Right to Sex Reassignment Therapy, 31 HARV. J.L. & GENDER 447,
464 (2008); see also Edmo, 935 F.3d at 785 (acknowledging that many courts have recognized
gender dysphoria as a serious medical need); Gibson, 920 F.3d at 219 (stating that the state
does not contest that the plaintiff diagnosed with gender dysphoria has a serious medical
need); Kosilek, 774 F.3d at 86 (“That [gender dysphoria] is a serious medical need . . . is not
in dispute in this case.”).2021] THE RIGHT TO GENDER CONFIRMATION SURGERY 2825
conflict centers around the necessity of GCS.150 Part III.A of this Note
examines Gibson, in which the Fifth Circuit held that a blanket ban on GCS
does not constitute cruel and unusual punishment because GCS is never
medically necessary. Part III.B of this Note explores the contrary approach
adopted by the Ninth Circuit in Edmo and its conclusion that GCS is
medically necessary in certain circumstances.
A. The Fifth Circuit: Gibson
After Kosilek, the Fifth Circuit in Gibson addressed whether it was cruel
and unusual punishment to deny a transgender prisoner GCS.151 Vanessa
Lynn Gibson, the plaintiff, was a transgender female inmate in the custody
of the Texas Department of Criminal Justice (TDCJ).152 Gibson, who had
been diagnosed with gender dysphoria, had identified as female since age
fifteen.153 While imprisoned for aggravated robbery, Gibson suffered from
depression and “acute distress.”154 She tried to castrate herself and attempted
suicide three times.155 The prison provided Gibson hormone therapy and
counseling to treat her dysphoria.156 However, she claimed this treatment
did not alleviate her distress and that without GCS, she would again attempt
to commit suicide or self-castration.157 The prison denied her repeated
requests for GCS, as the prison’s policy explicitly prohibited the use of GCS
to treat gender dysphoria.158 Gibson filed suit against the director of TDCJ,
arguing that the blanket ban on GCS amounted to deliberate indifference
because it prevented the prison from even considering whether GCS was
necessary for her.159 The Fifth Circuit rejected Gibson’s claim and upheld
the constitutionality of a blanket ban on GCS.160
1. The Objective Prong
The court held that Gibson satisfied the objective prong of her Eighth
Amendment claim.161 Gibson’s gender dysphoria constituted a serious
medical need as reflected by her “record of psychological distress, suicidal
ideation, and threats of self-harm.”162 The court never explicitly addressed
the adequacy of Gibson’s treatment.163 However, the court viewed the
150. Compare Edmo, 935 F.3d at 787 (stating that GCS can be medically necessary), with
Gibson, 920 F.3d at 220–21 (finding that GCS is never medically necessary).
151. See Gibson, 920 F.3d at 215.
152. Id. at 216–17.
153. Id. at 217.
154. Id.
155. Id.
156. Id.
157. Id.
158. Id. at 217–18.
159. Id. at 218.
160. See id. at 226.
161. See id. at 219.
162. Id.
163. See id. (stating only that Gibson had a serious medical need before proceeding to the
subjective prong of the analysis).2826 FORDHAM LAW REVIEW [Vol. 89
subjective prong, namely the prison’s alleged deliberate indifference, as the
only real issue in dispute.164
2. The Subjective Prong
The court held that Gibson’s Eighth Amendment claim failed to satisfy the
subjective prong.165 The state did not act with deliberate indifference by
implementing a blanket ban on GCS.166 In so holding, the court reasoned
that “there is no intentional or wanton deprivation of care” when a prison
denies an inmate a treatment that is highly contested within the medical
community.167 According to the court, unless a treatment is “universally
accepted” by the medical community as necessary, failure to provide such
treatment cannot amount to deliberate indifference.168 Because the court
found that GCS was not universally accepted, it concluded a blanket ban on
the surgery did not violate the Eighth Amendment.169
The court relied exclusively on the record in Kosilek to determine that GCS
was not “universally accepted” as medically necessary.170 First, the Fifth
Circuit rejected the acceptance of the WPATH’s SOC, which assert that GCS
is a medical necessity.171 According to the court, the testimony in Kosilek
demonstrated that the SOC “reflect not consensus, but merely one side in a
sharply contested medical debate over [GCS].”172 Moreover, the court found
that the record in Kosilek “document[ed] more than enough dissension within
the medical community” to prove that GCS was not medically necessary.173
As the court found that GCS is never required, it had no impetus to address
Gibson’s individualized need and instead upheld the blanket ban. 174
Further, the court determined that blanket bans in and of themselves do not
amount to deliberate indifference.175 In upholding the blanket ban, the court
relied on both the Constitution and precedent.176 The court argued that the
164. See id.
165. See id. at 220.
166. See id. at 224–25.
167. Id. at 220 (citing Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 2019)).
168. See id. at 220–21.
169. See id. at 224.
170. See Edmo v. Corizon, Inc., 935 F.3d 757, 795 (9th Cir. 2019) (per curiam) (stating
that Gibson “coopted the record from Kosilek” in finding that GCS is never medically
necessary), reh’g denied, 949 F.3d 489 (9th Cir. 2020), stay denied sub nom. Idaho Dep’t of
Corr. v. Edmo, 140 S. Ct. 2800 (2020) (Kagan, J., in chambers), and cert. denied, No. 19-
1280, 2020 WL 6037411 (U.S. Oct. 13, 2020).
171. See Gibson, 920 F.3d at 223 (stating that WPATH’s SOC do not reflect a medical
consensus).
172. Id. at 221–22 (citing Kosilek v. Spencer, 774 F.3d 63, 76, 87 (1st Cir. 2014) (noting
specifically that the testimonies of Dr. Chester Schmidt, a licensed psychiatrist and associate
director of Johns Hopkins School of Medicine, and Dr. Stephen Levine, an author of
WPATH’s SOC, expressed skepticism about the efficacy of the SOC and acknowledged that
many medical professionals decline to adhere to them).
173. See id. at 223.
174. See id. at 223–25.
175. See id. at 224–25.
176. See id. at 225.2021] THE RIGHT TO GENDER CONFIRMATION SURGERY 2827
Eighth Amendment permits categorical judgments in certain contexts.177
Additionally, the court relied on Kosilek as precedent for condoning a blanket
ban, noting that both the Kosilek dissent and Gibson’s counsel “construed the
logic” of the majority to allow for such a ban.178
3. Evolving Standards of Decency
Gibson recognized the importance of considering evolving standards of
decency when determining which punishments are cruel and unusual.179 Not
only did the court cite numerous Supreme Court opinions to demonstrate this
significance180 but it also specifically stated that “our job is to identify the
‘evolving standards of decency’; to determine, not what they should be, but
what they are.”181 In espousing that evolving standards of decency do not
reflect a national consensus regarding the necessity of GCS, the court noted
that only one state at the time had ever provided GCS to an inmate.182 Thus,
denying such surgery could not be “unusual” or outside the bounds of
decency.183
B. The Ninth Circuit: Edmo
Faced with a transgender prisoner’s Eighth Amendment inadequate health
care claim, the Ninth Circuit in Edmo rejected the blanket ban on GCS
adopted by the Fifth Circuit in Gibson.184 Adree Edmo, the plaintiff, was a
transgender female prisoner in the custody of the Idaho Department of
Correction (IDOC).185 She had identified as female since the age of five or
six.186 Edmo was officially diagnosed with gender dysphoria after her arrest
for sexual abuse of a fifteen-year-old male.187 While incarcerated, Edmo
legally changed her name to Adree and the sex on her birth certificate to
177. See id. The court illustrated this point by reference to the FDA. Id. The court
explained that the Eighth Amendment does not require an individualized assessment of an
inmate’s need for a certain drug where the FDA has categorically banned such drug. See id.
178. See id. at 224–25 (citing Kosilek v. Spencer, 774 F.3d 63, 106–07 (1st Cir. 2014)
(Thompson J., dissenting)).
179. See id. at 226–27 (explaining that the “fundamental flaw” in Gibson’s argument is that
this punishment comports with evolving standards of decency) (citing Stanford v. Kentucky,
492 U.S. 361, 378 (1989))).
180. See id. at 227 (first citing Harmelin v. Michigan, 501 U.S. 957, 976 (1991); then citing
Stanford v. Kentucky, 492 U.S. at 361, 378 (1989); then citing Roper v. Simmons, 543 U.S.
551, 564 (2005); and then Glossip v. Gross, 576 U.S. 863, 938–39 (2015) (Breyer, J.,
dissenting)).
181. Id. (quoting Stanford v. Kentucky, 492 U.S. 361, 378 (2015)).
182. Id. (citing Quine v. Beard, No. 14-cv-02726, 2017 WL 1540758, at *1 (N.D. Cal. Apr.
28, 2017)).
183. See id. at 228.
184. Edmo v. Corizon, Inc., 935 F.3d 757, 795 (9th Cir. 2019) (per curiam) (“We
respectfully disagree with the categorical nature of our sister circuit’s holding.”), reh’g denied,
949 F.3d 489 (9th Cir. 2020), stay denied sub nom. Idaho Dep’t of Corr. v. Edmo, 140 S. Ct.
2800 (2020) (Kagan, J., in chambers), and cert. denied, No. 19-1280, 2020 WL 6037411 (U.S.
Oct. 13, 2020).
185. Id. at 767.
186. Id. at 772.
187. Id.You can also read
